This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

18406 

Vol. 72, No. 70 

Thursday, April 12, 2007 

OFFICE OF SPECIAL COUNSEL 

5 CFR Part 1820 

Freedom of Information Act; 

Implementation 

AGENCY: U.S. Office of Special Counsel. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Office of Special 

Counsel (OSC) proposes to revise its 

regulations dealing primarily with the 

agency’s implementation of the 

Freedom of Information Act (FOIA). The 

regulation, as revised, would implement 

provisions of the FOIA as amended, 

update information in the current 

regulation, and contain new and 

expanded information about the 

agency’s processing of FOIA requests 

and appeals. Included in the revised 

regulation, as proposed, are provisions 

containing updated, revised, or new 

information about: publicly available 

records and information; requirements 

for making FOIA requests, including 

updated contact information; 

consultations with and referrals to other 

agencies; responses to requests, 

including information about multitrack 

and expedited processing; requirements 

for appealing initial decisions on 

requests, including updated contact 

information; fees, including new and 

revised cost information; and business 

information. Finally, the regulation, as 

revised, would address responses to 

demands by courts or other authorities 

to an OSC employee for production of 

official records or testimony in legal 

proceedings. 

DATES: Comments on the proposed rule 

must be received by May 14, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Kurt, FOIA Officer, in 

writing at: U.S. Office of Special 

Counsel, Legal Counsel and Policy 

Division, 1730 M Street, NW., Suite 218, 

Washington, DC 20036-4505; by 

telephone at (202) 254-3600; or by 

facsimile at (202) 653-5151. 

SUPPLEMENTARY INFORMATION: OSC 

proposes to revise its regulations at 5 

C.F.R. Part 1820, dealing primarily with 

the agency’s implementation of the 

FOIA. The regulation, as revised, would 

implement provisions of the FOIA, at 5 

U.S.C. 552, as amended, update 

information in the current regulation, 

and contain new and expanded 

information about the agency’s 

processing of FOIA requests and 

appeals. A description of proposed 

changes follows. 

The title of part 1820 would be 

changed to reflect its primary focus on 

the agency’s implementation of the 

FOIA, and its coverage of responses to 

certain demands for production of 

official records and testimony. Section 

1820.1 would be substantially revised 

and updated to: outline the scope of part 

1820; make clear that the part should be 

read together with provisions of the 

FOIA; provide readers with the address 

for the FOIA page of OSC’s web site; 

and describe information publicly 

available without a FOIA request. 

Section 1820.2 would be revised and 

enlarged to: describe requirements for 

FOIA requests; provide updated OSC 

contact information for such requests; 

and describe the agreement to pay fees 

implicit in FOIA requests, unless 

waived or specified otherwise. 

Sections 1820.3-1820.7 of the current 

regulation, dealing with FOIA fees, 

would be consolidated into a new 

section 1820.7, to be described later in 

this notice. A new section 1820.3 would 

address consultations with and referrals 

to other agencies, describing 

circumstances in which OSC may 

consult with other agencies about a 

FOIA request and refer records to 

another agency for a disclosure 

decision. 

A new section 1820.4 would deal 

with the timing of responses to FOIA 

requests, and incorporate including new 

regulatory provisions on multitrack and 

expedited processing of requests and 

appeals. 

A new section 1820.5 would describe 

the types of responses to FOIA requests, 

including adverse determinations. 

The current section of part 1820 

dealing with appeals (1820.8), would be 

re-numbered as section 1820.6. The new 

section 1820.6 would: contain an 

expanded discussion of requirements 

for filing appeals of adverse FOIA 

determinations; provide updated OSC 

contact information for such appeals; 

extend the time for filing an appeal from 

30 to 45 days from the date of the 

determination; and describe the nature 

of responses to appeals. 

A new section 1820.7, as noted before, 

would incorporate updated and 

expanded provisions on fees associated 

with the processing of FOIA requests, 

including: a provision specifying that if 

a fee incurred for responding to a FOIA 

request is $20.00 or less, no fee will be 

charged to the requester; revision of 

labor rates for search and review time 

for clerical and professional personnel, 

reflecting current costs, and addition of 

a labor category for managerial 

personnel; inclusion of the cost of 

retrieving records from a Federal 

Records Center and expanded 

discussion of requirements and criteria 

for fee waiver or fee reduction requests. 

A new section 1820.8 would 

implement the provisions of Executive 

Order No. 12600, and outline 

procedures to be followed in case OSC 

were to receive a FOIA request for 

business information. 

A new section 1820.9 would provide 

that part 1820 should not be construed 

as entitling any person to any service or 

the disclosure of any record to which 

such person is not entitled under the 

FOIA. 

Finally, section 1820.9 in the current 

regulation has been re-numbered as 

section 1820.10 and re-titled to clarify 

the scope of that section. 

Procedural Determinations 

Congressional Review Act: OSC has 

determined that these proposed 

revisions are non-major under the 

Congressional Review Act, and will 

submit a report on this final rule to 

Congress and the Government 

Accountability Office pursuant to the 

act. 

Regulatory Flexibility Act 

Certification (5 U.S.C. 605): I certify that 

this regulation will not have a 

significant economic impact on a 

substantial number of small entities. 

OSC primarily handles matters 

involving individuals who are current 

or former Federal government 

employees, applicants for federal 

employment, certain state or local 

government employees, and 

representatives of these individuals. 

These regulations, as revised, would 

affect only the implementation of the 

Freedom of Information Act at OSC, and 

responses by OSC to certain demands 

for production of records or testimony. 


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These proposed revisions will not cause 

significant additional impact. 

Unfunded Mandates Reform Act 

(UMRA): This proposed revision does 

not impose any Federal mandates on 

state, local, or tribal governments, or on 

the private sector within the meaning of 

the UMRA. 

Paperwork Reduction Act: This 

revision does no impose any new 

recordkeeping, reporting or other 

information collection requirements on 

the public. 

Executive Order 12866 (Regulatory 

Planning and Review): While not 

required to do so, OSC has reviewed 

this revision under Executive Order 

12866 and anticipates that the economic 

impact of this revision will be 

insignificant. Thus, this proposed 

revision is not a significant regulatory 

action under §3(f) of Executive Order 

12866, and does not require an 

assessment of potential costs and 

benefits under §6(a)(3) of the order. 

Executive Order 13132 (Federalism): 

This proposed revision does not have 

new federalism implications under 

Executive Order 13132. The Hatch Act, 

at title 5 of the U.S. Code, chapter 15, 

prohibits certain political activities of 

covered state and local government 

employees. OSC has jurisdiction to 

issue advisory opinions on political 

activity by those employees, and to 

bring enforcement action before the 

Merit Systems Protection Board for 

prohibited activity by a covered state or 

local government employee. These 

revised regulations affect only the 

implementation of the Freedom of 

Information Act at OSC, and responses 

by OSC to certain demands for 

production of records or testimony, and 

do not significantly change the rights of 

state and local government employees. 

Executive Order 12988 (Civil Justice 

Reform): This proposed rule meets 

applicable standards of §§ 3(a) and 

3(b)(2) of Executive Order 12988. 

List of Subjects in 5 CFR Part 1820 

Administrative practice and 

procedure, Government employees, 

Freedom of Information. 

For the reasons stated in the 

preamble, OSC proposes to revise 5 CFR 

Part 1820 to read as follows: 

PART 1820—FREEDOM OF 

INFORMATION ACT REQUESTS; 

PRODUCTION OF RECORDS OR 

TESTIMONY 

Sec. 

1820.1 General provisions. 

1820.2 Requirements for making FOIA 

requests. 

1820.3 Consultations and referrals. 

1820.4 Timing of responses to requests. 

1820.5 Responses to requests. 

1820.6 Appeals. 

1820.7 Fees. 

1820.8 Business information. 

1820.9 Other rights and services. 

1820.10 Production of official records or 

testimony in legal proceedings. 

Authority: 5 U.S.C. 552 and 1212(e); 

Executive Order No. 12600, 52 FR 23781, 3 

CFR, 1987 Comp., p. 235. 

§ 1820.1 General provisions. 

This part contains rules and 

procedures followed by the Office of 

Special Counsel (OSC) in processing 

requests for records under the Freedom 

of Information Act (FOIA), as amended, 

at 5 U.S.C. 552. These rules and 

procedures should be read together with 

the FOIA, which provides additional 

information about access to agency 

records. Further information about the 

FOIA and access to OSC records is 

available on the FOIA page of OSC’s 

web site (www.osc.gov/foia.htm). 

Information routinely provided to the 

public as part of a regular OSC activity–

for example, forms, press releases issued 

by the public affairs officer, records 

published on the agency’s web site 

(www.osc.gov), or public lists 

maintained at OSC headquarters offices 

pursuant to 5 U.S.C. 1219–may be 

requested and provided to the public 

without following this part. This part 

also addresses responses to demands by 

a court or other authority to an 

employee for production of official 

records or testimony in legal 

proceedings. 

§ 1820.2 Requirements for making FOIA 

requests. 

(a) How made and addressed. A 

request for OSC records under the FOIA 

should be made by writing to the 

agency. The request should be sent by 

regular mail addressed to: FOIA Officer, 

U.S. Office of Special Counsel, 1730 M 

Street, NW. (Suite 218), Washington, DC 

20036-4505. Such requests may also be 

faxed to the FOIA Officer at the number 

provided on the FOIA page of OSC’s 

web site (see section 1820.1). For the 

quickest handling, both the request 

letter and envelope or any fax cover 

sheet should be clearly marked ‘‘FOIA 

Request.’’ Whether sent by mail or by 

fax, a FOIA request will not be 

considered to have been received by 

OSC until it reaches the FOIA Officer. 

(b) Description of records sought. 

Requesters must describe the records 

sought in enough detail for them to be 

located with a reasonable amount of 

effort. When requesting records about an 

OSC case file, the case file number, 

name, and type (for example, prohibited 

personnel practice, Hatch Act, USERRA 

or other complaint; Hatch Act advisory 

opinion; or whistleblower disclosure) 

should be provided, if known. 

Whenever possible, requests should 

describe any particular record sought, 

such as the date, title or name, author, 

recipient, and subject matter. 

(c) Agreement to pay fees. Making a 

FOIA request shall be considered an 

agreement by the requester to pay all 

applicable fees chargeable under section 

1820.7, up to and including the amount 

of $25.00, unless the requester asks for 

a waiver of fees. When making a 

request, a requester may specify a 

willingness to pay a greater or lesser 

amount. 

§ 1820.3 Consultations and referrals. 

When OSC receives a FOIA request 

for a record in the agency’s possession, 

it may determine that another Federal 

agency is better able to decide whether 

or not the record is exempt from 

disclosure under the FOIA. If so, OSC 

will either: (1) respond to the request for 

the record after consulting with the 

other agency and with any other agency 

that has a substantial interest in the 

record; or (2) refer the responsibility for 

responding to the request to the other 

agency deemed better able to determine 

whether to disclose it. Consultations 

and referrals will be handled according 

to the date that the FOIA request was 

initially received by the first agency. 

§ 1820.4 Timing of responses to requests. 

(a) In general. OSC ordinarily will 

respond to FOIA requests according to 

their order of receipt. In determining 

which records are responsive to a 

request, OSC ordinarily will include 

only records in its possession as of the 

date on which it begins its search for 

them. If any other date is used, OSC will 

inform the requester of that date. 

(b) Multitrack processing. (1) OSC 

may use two or more processing tracks 

by distinguishing between simple and 

more complex requests based on the 

amount of work and/or time needed to 

process the request. 

(2) When using multitrack processing, 

OSC may provide requesters in its 

slower track(s) with an opportunity to 

limit the scope of their requests in order 

to qualify for faster processing within 

the specified limits of the faster track(s). 

(c) Expedited processing. (1) Requests 

and appeals will be taken out of order 

and given expedited treatment 

whenever OSC has established to its 

satisfaction that: (i) failure to obtain 

requested records on an expedited basis 

could reasonably be expected to pose an 

imminent threat to the life or physical 

safety of an individual; (ii) with respect 

to a request made by a person primarily 

engaged in disseminating information, 


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an urgency exists to inform the public 

about an actual or alleged federal 

government activity; or (iii) records 

requested relate to an appeal that is 

pending before, or that the requester 

faces an imminent deadline for filing 

with, the Merit Systems Protection 

Board or other administrative tribunal 

or a court of law, seeking personal relief 

pursuant to a complaint filed by the 

requester with OSC, or referred to OSC 

pursuant to title 38 of the U.S. Code. 

(2) A request for expedited processing 

must be made in writing and sent to 

OSC’s FOIA Officer. Such a request will 

not be considered to have been received 

until it reaches the FOIA Officer. 

(3) A requester who seeks expedited 

processing must submit a statement, 

certified to be true and correct to the 

best of that person’s knowledge and 

belief, explaining in detail the basis for 

requesting expedited processing. For 

example, a requester within the category 

described in paragraph (c)(1)(ii) of this 

section, if not a full-time member of the 

news media, must establish that he or 

she is a person whose main professional 

activity or occupation is information 

dissemination, though it need not be his 

or her sole occupation. The formality of 

certification may be waived as a matter 

of OSC’s administrative discretion. 

(4) OSC shall decide whether to grant 

a request for expedited processing and 

notify the requester of its decision 

within 10 calendar days of the FOIA 

Officer’s receipt of the request. If the 

request for expedited processing is 

granted, the request for records shall be 

processed as soon as practicable. If a 

request for expedited processing is 

denied, any administrative appeal of 

that decision shall be acted on 

expeditiously. 

(d) Aggregated requests. OSC may 

aggregate multiple requests by the same 

requester, or by a group of requesters 

acting in concert, if it reasonably 

believes that such requests actually 

constitute a single request involving 

unusual circumstances, as defined by 

the FOIA, supporting an extension of 

time to respond, and the requests 

involve clearly related matters. 

§ 1820.5 Responses to requests. 

(a) General. Once OSC makes a 

determination to grant a FOIA request 

for records, or makes an adverse 

determination denying a request in any 

respect, it will notify the requester in 

writing. Adverse determinations, or 

denials of requests, consist of: a 

determination to withhold any 

requested record in whole or in part; a 

determination that a requested record 

does not exist or cannot be located; a 

determination that a record is not 

readily reproducible in the form or 

format sought by the requester; a 

determination that what has been 

requested is not a record subject to the 

FOIA; a determination on any disputed 

fee matter, including a denial of a 

request for a fee waiver; and a denial of 

a request for expedited treatment. 

(b) Adverse determinations. A 

notification to a requester of an adverse 

determination on a request shall 

include: (1) a brief statement of the 

reason(s) for the denial of the request, 

including any FOIA exemption applied 

by OSC in denying the request; and (2) 

a statement that the denial may be 

appealed under section 1820.6(a), with 

a description of the requirements of that 

subsection. 

§ 1820.6 Appeals. 

(a) Appeals of adverse 

determinations. A requester may appeal 

an adverse determination denying a 

FOIA request in any respect to the Legal 

Counsel and Policy Division, U.S. Office 

of Special Counsel, 1730 M Street, NW. 

(Suite 218), Washington, DC 20036- 

4505. The appeal must be in writing, 

and sent by regular mail or by fax. The 

appeal must be received by the Legal 

Counsel and Policy Division within 45 

days of the date of the letter denying the 

request. For the quickest possible 

handling, the appeal letter and envelope 

or any fax cover sheet should be clearly 

marked ‘‘FOIA Appeal.’’ The appeal 

letter may include as much or as little 

related information as the requester 

wishes, as long as it clearly identifies 

the OSC determination (including the 

assigned FOIA request number, if 

known) being appealed. An appeal 

ordinarily will not be acted on if the 

request becomes a matter of FOIA 

litigation. 

(b) Responses to appeals. The agency 

decision on an appeal will be made in 

writing. A decision affirming an adverse 

determination in whole or in part shall 

inform the requester of the provisions 

for judicial review of that decision. If 

the adverse determination is reversed or 

modified on appeal, in whole or in part, 

the requester will be notified in a 

written decision and the request will be 

reprocessed in accordance with that 

appeal decision. 

§ 1820.7 Fees. 

(a) In general. OSC shall charge for 

processing requests under the FOIA in 

accordance with paragraph (c) of this 

section, except where fees are limited 

under paragraph (d) of this section or 

where a waiver or reduction of fees is 

granted under paragraph (k) of this 

section. OSC may collect all applicable 

fees before sending copies of requested 

records to a requester. Requesters must 

pay fees by check or money order made 

payable to the Treasury of the United 

States. 

(b) Definitions. For purposes of this 

section: 

(1) ‘‘’Commercial use’ request’’ means 

a request from or on behalf of a person 

who seeks information for a use or 

purpose that furthers his or her 

commercial, trade, or profit interests, 

which can include furthering those 

interests through litigation. OSC shall 

determine, whenever reasonably 

possible, the use to which a requester 

will put the requested records. When it 

appears that the requester will put the 

records to a commercial use, either 

because of the nature of the request 

itself or because OSC has reasonable 

cause to doubt a requester’s stated use, 

OSC shall provide the requester with a 

reasonable opportunity to submit 

further clarification. 

(2) ‘‘Direct costs’’ means those 

expenses that OSC incurs in searching 

for and duplicating (and, in the case of 

commercial use requests, reviewing) 

records to respond to a FOIA request. 

Direct costs include, for example, the 

salary of the employee performing the 

work (the basic rate of pay for the 

employee plus 16 percent of that rate to 

cover benefits) and the cost of operating 

duplicating equipment. Direct costs do 

not include overhead expenses such as 

the costs of space, and heating or 

lighting the facility in which the records 

are kept. 

(3) ‘‘Duplication’’ means the process 

of making of a copy of a record, or of 

the information contained in it, 

necessary to respond to a FOIA request. 

Copies can take the form of paper, 

microform, audiovisual materials, or 

electronic records (for example, on 

digital data storage discs), among others. 

(4) ‘‘Educational institution’’ means a 

preschool, a public or private 

elementary or secondary school, an 

institution of undergraduate higher 

education, an institution of graduate 

higher education, an institution of 

professional education, or an institution 

of vocational education, that operates a 

program of scholarly research. To be in 

this category, a requester must show 

that the request is authorized by and is 

made under the auspices of a qualifying 

institution and that the records are not 

sought for a commercial use but are 

sought to further scholarly research. 

(5) ‘‘Non-commercial scientific 

institution’’ means an institution that is 

not operated on a ‘‘commercial’’ basis, 

as that term is referenced in paragraph 

(b)(1) of this section, and that is 

operated solely for the purpose of 

conducting scientific research the 


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results of which are not intended to 

promote any particular product or 

industry. To be in this category, a 

requester must show that the request is 

authorized by and is made under the 

auspices of a qualifying institution and 

that the records are not sought for a 

commercial use but are sought to further 

scientific research. 

(6) ‘‘Representative of the news 

media’’ or ‘‘news media requester’’

means any person actively gathering 

news for an entity that is organized and 

operated to publish or broadcast news to 

the public. The term ‘‘news’’ means 

information that is about current events 

or that would be of current interest to 

the public. Examples of news media 

entities include television or radio 

stations broadcasting to the public at 

large and publishers of periodicals (but 

only in those instances where they can 

qualify as disseminators of ‘‘news’’) who 

make their products available for 

purchase or subscription by the general 

public. For ‘‘freelance’’ journalists to be 

regarded as working for a news 

organization, they must demonstrate a 

solid basis for expecting publication 

through that organization. A publication 

contract would be the clearest proof, but 

OSC may also look to the past 

publication record of a requester in 

making this determination. To be in this 

category, a requester must not be 

seeking the requested records for a 

commercial use. However, a request for 

records supporting the newsdissemination function of the requester 

shall not be considered to be for a 

commercial use. 

(7) ‘‘Review’’ means the process of 

examining a record located in response 

to a request in order to determine 

whether any portion of the record is 

exempt from disclosure. It includes 

processing any record for disclosure - 

for example, doing all that is necessary 

to redact it and otherwise prepare it for 

disclosure. Review time also includes 

time spent obtaining and considering 

any formal objection to disclosure made 

by a business submitter under section 

1820.8(f). It does not include time spent 

resolving general legal or policy issues 

about the application of exemptions. 

Review costs are properly charged in 

connection with commercial use 

requests even if a record ultimately is 

not disclosed. 

(8) ‘‘Search’’ means the process of 

looking for and retrieving records or 

information responsive to a request. It 

includes page-by-page or line-by-line 

identification of information within 

records when undertaken, and 

reasonable efforts to locate and retrieve 

information from records maintained in 

electronic form or format, to the extent 

that such efforts would not significantly 

interfere with the operation of an 

automatic information system. 

(c) Fees. In responding to FOIA 

requests, OSC shall charge the following 

fees unless a waiver or reduction of fees 

has been granted under paragraph (k) of 

this section: 

(1) Search. (i) Search fees will be 

charged for all requests - other than 

requests made by educational 

institutions, noncommercial scientific 

institutions, or representatives of the 

news media - subject to the limitations 

of paragraph (d) of this section. OSC 

may charge for time spent searching 

even if it fails to locate responsive 

records, or records located after a search 

are determined to be exempt from 

disclosure. 

(ii) For each quarter hour spent by 

clerical personnel in searching for and 

retrieving a requested record, the fee 

will be $5.50. Where a search and 

retrieval cannot be performed entirely 

by clerical personnel - for example, 

where the identification of records 

within the scope of a request requires 

the use of professional personnel - the 

fee will be $9.00 for each quarter hour 

of search time spent by professional 

personnel. Where the time of managerial 

personnel is required, the fee will be 

$17.50 for each quarter hour of time 

spent by those personnel. 

(iii) For electronic searches of records, 

requesters will be charged the direct 

costs of conducting the search, 

including the costs of operator/ 

programmer staff time apportionable to 

the search. 

(iv) For requests requiring the 

retrieval of records from any Federal 

Records Center, additional costs may be 

charged in accordance with the 

applicable billing schedule established 

by the National Archives and Records 

Administration. 

(2) Duplication. Duplication fees will 

be charged to all requesters, subject to 

the limitations of paragraph (d) of this 

section. For a standard paper photocopy 

of a record (no more than one copy of 

which need be supplied), the fee will be 

25 cents per page. For copies produced 

by computer, such as discs or printouts, 

OSC will charge the direct costs, 

including staff time, of producing the 

copy. For other forms of duplication, 

OSC will charge the direct costs of that 

duplication. 

(3) Review. Review fees will be 

charged to requesters who make a 

commercial use request. Review fees 

will be charged for only initial record 

review - in other words, the review done 

when OSC analyzes whether an 

exemption applies to a particular record 

or record portion at the initial request 

level. No charge will be made for review 

at the administrative appeal level for an 

exemption already applied. However, 

records or record portions withheld 

under an exemption that is 

subsequently determined not to apply 

may be reviewed again to determine 

whether any other exemption not 

previously considered applies; the costs 

of that review are chargeable where it is 

made necessary by such a change of 

circumstances. Review fees will be 

charged at the same rates as those 

charged for a search under paragraph 

(c)(1)(ii) of this section. 

(d) Limitations on charging fees. (1) 

No search fee will be charged for 

requests by educational institutions, 

noncommercial scientific institutions, 

or representatives of the news media. 

(2) No search fee or review fee will be 

charged for a quarter-hour period unless 

more than half of that period is required 

for search or review. 

(3) Except for requesters seeking 

records for a commercial use, OSC will 

provide without charge: 

(i) The first 100 pages of duplication 

(or the cost equivalent); and 

(ii) The first two hours of search (or 

the cost equivalent). 

(4) Whenever a total fee calculated 

under paragraph (c) of this section is 

$20.00 or less for any request, no fee 

will be charged. 

(5) The provisions of paragraphs (d)(3) 

and (d)(4) of this section work together. 

This means that for requesters other 

than those seeking records for a 

commercial use, no fee will be charged 

unless the cost of search in excess of 

two hours plus the cost of duplication 

in excess of 100 pages totals more than 

$20.00. 

(e) Notice of anticipated fees in excess 

of $25.00. When OSC determines or 

estimates that the fees to be charged 

under this section will amount to more 

than $25.00, OSC shall notify the 

requester of the actual or estimated 

amount of the fees, unless the requester 

has indicated a willingness to pay fees 

as high as those anticipated. If only a 

portion of the fee can be estimated 

readily, OSC will advise the requester 

that the estimated fee may be only a 

portion of the total fee. In cases in 

which a requester has been notified that 

actual or estimated fees amount to more 

than $25.00, the request shall not be 

considered received and further work 

will not be done on it until the requester 

agrees to pay the anticipated total fee. A 

notice under this paragraph will offer 

the requester an opportunity to discuss 

the matter with OSC in order to 

reformulate the request to meet the 

requester’s needs at a lower cost. 


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(f) Charges for other services. Apart 

from the other provisions of this section, 

when OSC chooses as a matter of 

administrative discretion to provide a 

special service–such as sending records 

by other than ordinary mail–the direct 

costs of providing the service ordinarily 

will be charged. 

(g) Charging interest. OSC may charge 

interest on any unpaid fee starting on 

the 31st day after the date of on which 

the billing was sent to the requester. 

Interest charges will be assessed at the 

rate provided in 31 U.S.C. 3717 and will 

accrue from the date of billing until 

payment is received by OSC. OSC will 

follow the provisions of the Debt 

Collection Act of 1982 (Public Law 97- 

365, 96 Stat. 1749), as amended by the 

Debt Collection Act of 1996 (Public Law 

104-134, 110 Stat. 1321-358), and its 

administrative procedures, including 

the use of consumer reporting agencies, 

collection agencies, and offset. 

(h) Aggregating requests. Where OSC 

reasonably believes that a requester or a 

group of requesters acting together is 

attempting to divide a request into a 

series of requests that otherwise could 

have been submitted as a single request, 

for the purpose of avoiding fees, OSC 

may aggregate those requests and charge 

accordingly. OSC may presume that 

multiple requests of this type made 

within a 30-day period have been made 

in order to avoid fees. Where requests 

are separated by a longer period, OSC 

will aggregate them only where a 

reasonable basis exists for determining 

that aggregation is warranted under all 

of the circumstances involved. Multiple 

requests involving unrelated matters 

will not be aggregated. 

(i) Advance payments. (1) For 

requests other than those described in 

paragraphs (i)(2) and (i)(3) of this 

section, OSC will not require the 

requester to make an advance payment 

before work is begun or continued on a 

request. Payment owed for work already 

completed (that is, pre-payment after 

processing a request but before copies 

are sent to the requester) is not an 

advance payment. 

(2) Where OSC determines or 

estimates that a total fee to be charged 

under this section will be more than 

$250.00, it may require the requester to 

make an advance payment of an amount 

up to the amount of the entire 

anticipated fee before beginning to 

process the request, except where it 

receives a satisfactory assurance of full 

payment from a requester who has a 

history of prompt payment. 

(3) Where a requester has previously 

failed to pay a properly charged FOIA 

fee to any agency within 30 days of the 

date of billing, OSC may require the 

requester to pay the full amount due, 

plus any applicable interest, and to 

make an advance payment of the full 

amount of any anticipated fee, before 

OSC begins to process a new request or 

continues to process a pending request 

from that requester. 

(4) In cases in which OSC requires 

advance payment or payment due under 

paragraph (i)(2) or (3) of this section, the 

request shall not be considered received 

and further work will not be done on 

the request until the required payment 

is received. 

(j) Other statutes specifically 

providing for fees. The fee schedule of 

this section does not apply to fees 

charged under any statute that 

specifically requires an agency to set 

and collect fees for particular types of 

records. Where records responsive to 

requests are maintained for distribution 

by agencies operating such statutorily 

based fee schedule programs, OSC will 

provide contact information for use by 

requesters in obtaining records from 

those sources. 

(k) Requirements for waiver or 

reduction of fees. (1) Records responsive 

to a request shall be furnished without 

charge or at a charge reduced below that 

established under paragraph (c) of this 

section where OSC determines, based 

on all available information, that the 

requester has demonstrated that: 

(i) Disclosure of the requested 

information is in the public interest 

because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government, and 

(ii) Disclosure of the information is 

not primarily in the commercial interest 

of the requester. 

(2) To determine whether the first fee 

waiver requirement is met, OSC will 

consider the following factors: 

(i) The subject of the request: Whether 

the subject of the requested records 

concerns ‘‘the operations or activities of 

the government.’’ The subject of the 

requested records must concern 

identifiable operations or activities of 

the federal government, with a 

connection that is direct and clear, not 

remote or attenuated. 

(ii) The informative value of the 

information to be disclosed: Whether 

the disclosure is ‘‘likely to contribute’’

to an understanding of government 

operations or activities. The disclosable 

portions of the requested records must 

be meaningfully informative about 

government operations or activities in 

order to be ‘‘likely to contribute’’ to an 

increased public understanding of those 

operations or activities. The disclosure 

of information that already is in the 

public domain, in either a duplicative or 

a substantially identical form, would 

not be as likely to contribute to such 

understanding where nothing new 

would be added to the public’s 

understanding. 

(iii) The contribution to an 

understanding of the subject by the 

public likely to result from disclosure: 

Whether disclosure of the requested 

information will contribute to ‘‘public 

understanding.’’ The disclosure must 

contribute to the understanding of a 

reasonably broad audience of persons 

interested in the subject, as opposed to 

the individual understanding of the 

requester. A requester’s expertise in the 

subject area and ability and intention to 

effectively convey information to the 

public shall be considered. It shall be 

presumed that a representative of the 

news media satisfies this consideration. 

(iv) The significance of the 

contribution to public understanding: 

Whether the disclosure is likely to 

contribute ‘‘significantly’’ to public 

understanding of government operations 

or activities. The public’s understanding 

of the subject in question, as compared 

to the level of public understanding 

existing prior to the disclosure, must be 

enhanced by the disclosure to a 

significant extent. OSC shall not make 

value judgments about whether 

information that would contribute 

significantly to public understanding of 

the operations or activities of the 

government is ‘‘important’’ enough to be 

made public. 

(3) To determine whether the second 

fee waiver requirement is met, OSC will 

consider the following factors: 

(i) The existence and magnitude of a 

commercial interest: Whether the 

requester has a commercial interest that 

would be furthered by the requested 

disclosure. OSC shall consider any 

commercial interest of the requester 

(with reference to the definition of 

‘‘commercial use’’ in paragraph (b)(1) of 

this section), or of any person on whose 

behalf the requester may be acting, that 

would be furthered by the requested 

disclosure. Requesters shall be given an 

opportunity to provide explanatory 

information about this consideration. 

(ii) The primary interest in disclosure: 

Whether any identified commercial 

interest of the requester is sufficiently 

large, in comparison with the public 

interest in disclosure, that disclosure is 

‘‘primarily in the commercial interest of 

the requester.’’ A fee waiver or 

reduction is justified where the public 

interest standard is satisfied and that 

public interest is greater in magnitude 

than that of any identified commercial 

interest in disclosure. OSC ordinarily 

shall presume that where a news media 

requester has satisfied the public 


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interest standard, the public interest 

will be the interest primarily served by 

disclosure to that requester. Disclosure 

to data brokers or others who merely 

compile and market government 

information for direct economic return 

shall not be presumed to primarily serve 

the public interest. 

(4) Where only some of the records to 

be released satisfy the requirements for 

a waiver of fees, a waiver shall be 

granted for those records. 

(5) Requests for the waiver or 

reduction of fees should address the 

factors listed in paragraphs (k)(2) and (3) 

of this section, insofar as they apply to 

each request. OSC will exercise its 

discretion to consider the costeffectiveness of its investment of 

administrative resources in this decision 

making process, however, in deciding to 

grant waivers or reductions of fees. 

§ 1820.8 Business information. 

(a) In general. Business information 

obtained by OSC from a submitter will 

be disclosed under the FOIA only under 

this section. 

(b) Definitions. For purposes of this 

section: 

(1) ‘‘Business information’’ means 

commercial or financial information 

obtained by OSC from a submitter that 

may be protected from disclosure under 

exemption 4 of the FOIA. 

(2) ‘‘Submitter’’ means any person or 

entity from whom the OSC obtains 

business information, directly or 

indirectly. The term includes 

corporations, and state, local, tribal and 

foreign governments. 

(c) Designation of business 

information. A submitter of business 

information will use good-faith efforts to 

designate, by appropriate markings, 

either at the time of submission or at a 

reasonable time thereafter, any portion 

of its submission that it considers to be 

protected from disclosure under 

exemption 4. These designations will 

expire 10 years after the date of the 

submission unless the submitter 

requests, and provides justification for, 

a longer designation period. 

(d) Notice to submitters. OSC shall 

provide a submitter with prompt written 

notice of a FOIA request or 

administrative appeal that seeks its 

business information wherever required 

under paragraph (e) of this section, 

except as provided in paragraph (h) of 

this section, in order to give the 

submitter an opportunity to object to 

disclosure of any specified portion of 

that information under paragraph (f) of 

this section. The notice shall either 

describe the business information 

requested or include copies of the 

requested records or record portions 

containing the information. When 

notification of a voluminous number of 

submitters is required, notification may 

be made by posting or publishing the 

notice in a place reasonably likely to 

accomplish it. 

(e) When notice is required. Notice 

shall be given to a submitter wherever: 

(1) The information has been 

designated in good faith by the 

submitter as information considered 

protected from disclosure under 

exemption 4; or 

(2) OSC has reason to believe that the 

information may be protected from 

disclosure under exemption 4. 

(f) Opportunity to object to disclosure. 

OSC will allow a submitter a reasonable 

time to respond to the notice described 

in paragraph (d) of this section and will 

specify that time period within the 

notice. If a submitter has any objection 

to disclosure, it is required to submit a 

detailed written statement. The 

statement must specify all grounds for 

withholding any portion of the 

information under any exemption of the 

FOIA and, in the case of exemption 4, 

it must show why the information is a 

trade secret or commercial or financial 

information that is privileged or 

confidential. If a submitter fails to 

respond to the notice within the time 

specified in it, the submitter will be 

considered to have no objection to 

disclosure of the information. 

Information provided by the submitter 

that is not received by OSC until after 

its disclosure decision has been made 

shall not be considered by OSC. 

Information provided by a submitter 

under this paragraph may itself be 

subject to disclosure under the FOIA. 

(g) Notice of intent to disclose. OSC 

shall consider a submitter’s objections 

and specific grounds for nondisclosure 

in deciding whether to disclose business 

information. Whenever OSC decides to 

disclose business information over the 

objection of a submitter, OSC shall give 

the submitter written notice, which 

shall include: 

(1) A statement of the reason(s) why 

each of the submitter’s disclosure 

objections was not sustained; 

(2) A description of the business 

information to be disclosed; and 

(3) A specified disclosure date, which 

shall be a reasonable time subsequent to 

the notice. 

(h) Exceptions to notice requirements. 

The notice requirements of paragraphs 

(d) and (g) of this section shall not apply 

if: 

(1) OSC determines that the 

information should not be disclosed; 

(2) The information lawfully has been 

published or has been officially made 

available to the public; 

(3) Disclosure of the information is 

required by statute (other than the 

FOIA) or by a regulation issued in 

accordance with the requirements of 

Executive Order 12600; or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous - 

except that, in such a case, OSC shall, 

within a reasonable time prior to a 

specified disclosure date, give the 

submitter written notice of any final 

decision to disclose the information. 

(i) Notice of FOIA lawsuit. Whenever 

a requester files a lawsuit seeking to 

compel the disclosure of business 

information, OSC shall promptly notify 

the submitter. 

(j) Corresponding notice to requesters. 

Whenever OSC provides a submitter 

with notice and an opportunity to object 

to disclosure under paragraph (d) of this 

section, OSC shall also notify the 

requester(s). Whenever OSC notifies a 

submitter of its intent to disclose 

requested information under paragraph 

(g) of this section, OSC shall also notify 

the requester(s). Whenever a submitter 

files a lawsuit seeking to prevent the 

disclosure of business information, OSC 

shall notify the requester(s). 

§ 1820.9 Other rights and services. 

Nothing in this part shall be 

construed to entitle any person, as of 

right, to any service or to the disclosure 

of any record to which such person is 

not entitled under the FOIA. 

§ 1820.10 Production of official records or 

testimony in legal proceedings. 

No employee or former employee of 

the Office of Special Counsel shall, in 

response to a demand of a court or other 

authority, produce or disclose any 

information or records acquired as part 

of the performance of his official duties 

or because of his official status without 

the prior approval of the Special 

Counsel or the Special Counsel’s duly 

authorized designee. 

Dated: April 3, 2007 

Scott J. Bloch, 

Special Counsel. 

[FR Doc. E7–6774 Filed 4–11–07; 8:45 am] 

BILLING CODE 7405–01–S 


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